[Federal Register Volume 88, Number 192 (Thursday, October 5, 2023)]
[Notices]
[Pages 69214-69215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22176]
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DEPARTMENT OF HOMELAND SECURITY
Determination Pursuant to Section 102 of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, as Amended
AGENCY: Office of the Secretary, (DHS).
ACTION: Notice of determination.
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SUMMARY: The Secretary of Homeland Security has determined, pursuant to
law, that it is necessary to waive certain laws, regulations, and other
legal requirements in order to ensure the expeditious construction of
barriers and roads in the vicinity of the international land border in
Starr County, Texas.
DATES: This determination takes effect on October 5, 2023.
SUPPLEMENTARY INFORMATION: Important missions of the Department of
Homeland Security (``DHS'') include border security. Congress has
provided to the Secretary of Homeland Security a number of authorities
necessary to carry out DHS's border security mission. One of those
authorities is section 102 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, as amended (``IIRIRA''). Public
Law 104-208, Div. C, 110 Stat. 3009-546, 3009-554 (Sept. 30, 1996) (8
U.S.C 1103 note), as amended by the REAL ID Act of 2005, Public Law
109-13, Div. B, 119 Stat. 231, 302, 306 (May 11, 2005) (8 U.S.C. 1103
note), as amended by the Secure Fence Act of 2006, Public Law 109-367,
sec. 3, 120 Stat. 2638 (Oct. 26, 2006) (8 U.S.C. 1103 note), as amended
by the Department of Homeland Security Appropriations Act, 2008, Public
Law 110-161, Div. E, Title V, sec. 564, 121 Stat. 2090 (Dec. 26, 2007).
In section 102(a) of IIRIRA, Congress provided that the Secretary of
Homeland Security shall take such actions as may be necessary to
install additional physical barriers and roads (including the removal
of obstacles to detection of illegal entrants) in the vicinity of the
United States border to deter illegal crossings in areas of ``high
illegal entry'' into the United States. In section 102(b) of IIRIRA,
Congress called on the Secretary to construct reinforced fencing on the
southwest border and provide for the installation of additional
fencing, barriers, roads, lighting, cameras, and sensors on the
southwest border. Finally, in section 102(c) of IIRIRA, Congress
granted to the Secretary of Homeland Security the authority to waive
all legal requirements that I, in my sole discretion, determine
necessary to ensure the expeditious construction of barriers and roads
authorized by section 102 of IIRIRA.
Determination and Waiver
Section 1
The United States Border Patrol's (Border Patrol) Rio Grande Valley
Sector is an area of ``high illegal entry.'' As of early August 2023,
Border Patrol had encountered over 245,000 such entrants attempting to
enter the United States between ports of entry in the Rio Grande Valley
Sector in Fiscal Year 2023.
Therefore, I must use my authority under section 102 of IIRIRA to
install additional physical barriers and roads in the Rio Grande Valley
Sector. Therefore, DHS will take immediate action to construct barriers
and roads. Construction will be funded by a fiscal year 2019
appropriation through which Congress appropriated funds for the
construction border barrier in the Rio Grande Valley, and DHS is
required to use those funds for their appropriated purpose. This
project is consistent with DHS's plan to fulfill the requirements of
President Biden's Proclamation (Proclamation No. 10142, 86 FR 7225
(Jan. 20, 2021)), which ended the diversion of funds for border wall
from military projects or other sources while calling for the
expenditure of any funds Congress appropriated for barrier construction
consistent with their appropriated purpose. The areas in the vicinity
of the border within which such construction will occur are more
specifically described in Section 2 below. Such areas are not located
within any of the areas identified in section 231 of title II of
division A of the Fiscal Year 2019 DHS Appropriations Act. See Public
Law 116-6, Div. A, Title II, sec. 231.
Section 2
As set forth in section 102(a) of IIRIRA, I determine that the
following areas in the vicinity of the United States border, located in
the State of Texas within the Border Patrol's Rio Grande Valley Sector,
are areas of ``high illegal entry'' (the ``project areas''):
Starting approximately one mile south of the Falcon Dam
and extending southeast for approximately two miles.
Starting at the southeast boundary of the Arroyo Morteros
Tract of the Lower Rio Grande Valley National Wildlife Refuge and
extending southeast for approximately one mile.
Starting at the northernmost boundary of the Las Ruinas
Tract of the Lower Rio Grande Valley National Wildlife Refuge and
extending north for approximately one mile.
Starting at the eastern boundary of the Arroyo Ramirez
Tract of the Lower Rio Grande Valley National Wildlife Refuge and
extending east for approximately one-half mile.
Starting one-half mile south of the intersection of Perez
Road and U.S. Highway 83 and generally following the Rio Grande River
to approximately one-quarter mile south and east of the intersection of
Leos Road and U.S. Highway 83.
Starting approximately three-quarters of a mile southeast
of the intersection of North Redwoods Street and U.S. Highway 83 and
extending southeast to the northwest boundary of the Los Velas West
Tract of the Lower Rio Grande Valley National Wildlife Refuge.
Starting approximately one-tenth (0.1) of a mile south of
the intersection of Trophy Street and Moonbeam Street and extending
east to approximately one mile south of the intersection of Los Olmitos
Road and Farm to Market Road 1430.
Starting approximately one mile south of the intersection
of Los Olmitos Road and Farm to Market Road 1430 and extending
southeast to the northwest boundary of the La Casita East Tract of the
Lower Rio Grande Valley National Wildlife Refuge.
Starting approximately one mile south of the intersection
of Mission Street and Old Military Highway and
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extending southeast for approximately one and three-quarters miles.
Starting at the northeast boundary of the Villareales
Banco Tract of the Lower Rio Grande Valley National Wildlife Refuge and
extending east to the western boundary of the of the Cuevitas Tract of
the Lower Rio Grande Valley National Wildlife Refuge.
There is presently an acute and immediate need to construct
physical barriers and roads in the vicinity of the border of the United
States in order to prevent unlawful entries into the United States in
the project areas pursuant to sections 102(a) and 102(b) of IIRIRA. In
order to ensure the expeditious construction of the barriers and roads
in the project areas, I have determined that it is necessary that I
exercise the authority that is vested in me by section 102(c) of
IIRIRA.
Accordingly, pursuant to section 102(c) of IIRIRA, I hereby waive
in their entirety, with respect to the construction of roads and
physical barriers (including, but not limited to, accessing the project
areas, creating and using staging areas, the conduct of earthwork,
excavation, fill, and site preparation, and installation and upkeep of
physical barriers, roads, supporting elements, drainage, erosion
controls, safety features, lighting, cameras, and sensors) in the
project areas, all of the following statutes, including all federal,
state, or other laws, regulations, and legal requirements of, deriving
from, or related to the subject of, the following statutes, as amended:
The National Environmental Policy Act (Pub. L. 91-190, 83 Stat. 852
(Jan. 1, 1970) (42 U.S.C. 4321 et seq.)); the Endangered Species Act
(Pub. L. 93-205, 87 Stat. 884 (Dec. 28, 1973) (16 U.S.C. 1531 et
seq.)); the Federal Water Pollution Control Act (commonly referred to
as the Clean Water Act (33 U.S.C. 1251 et seq.)); the National Historic
Preservation Act (Pub. L. 89-665, 80 Stat. 915 (Oct. 15, 1966), as
amended, repealed, or replaced by Public Law 113-287, 128 Stat. 3094
(Dec. 19, 2014) (formerly codified at 16 U.S.C. 470 et seq., now
codified at 54 U.S.C. 100101 note and 54 U.S.C. 300101 et seq.)); the
Migratory Bird Treaty Act (16 U.S.C. 703 et seq.); the Migratory Bird
Conservation Act (16 U.S.C. 715 et seq.); the Clean Air Act (42 U.S.C.
7401 et seq.); the Archeological Resources Protection Act (Pub. L. 96-
95, 93 Stat. 721 (Oct. 31, 1979) (16 U.S.C. 470aa et seq.)); the
Paleontological Resources Preservation Act (16 U.S.C. 470aaa et seq.);
the Safe Drinking Water Act (42 U.S.C. 300f et seq.); the Noise Control
Act (42 U.S.C. 4901 et seq.); the Solid Waste Disposal Act, as amended
by the Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.);
the Comprehensive Environmental Response, Compensation, and Liability
Act (42 U.S.C. 9601 et seq.); the Archaeological and Historic
Preservation Act (Pub. L. 86-523, 74 Stat. 220 (June 27, 1960) as
amended, repealed, or replaced by Public Law 113-287, 128 Stat. 3094
(Dec. 19, 2014) (formerly codified at 16 U.S.C. 469 et seq., now
codified at 54 U.S.C. 312502 et seq.)); the Antiquities Act (formerly
codified at 16 U.S.C. 431 et seq., now codified 54 U.S.C. 320301 et
seq.); the Historic Sites, Buildings, and Antiquities Act (formerly
codified at 16 U.S.C. 461 et seq., now codified at 54 U.S.C. 3201-
320303 & 320101-320106); the Farmland Protection Policy Act (7 U.S.C.
4201 et seq.); the National Wildlife Refuge System Administration Act
(Pub. L. 89-669, 80 Stat. 926 (Oct. 15, 1966) (16 U.S.C. 668dd-668ee));
National Fish and Wildlife Act of 1956 (Pub. L. 84-1024, 70 Stat. 1119
(Aug. 8, 1956) (16 U.S.C. 742a, et seq.)); the Fish and Wildlife
Coordination Act (Pub. L. 73-121, 48 Stat. 401 (March 10, 1934) (16
U.S.C. 661 et seq.)); the National Trails System Act (16 U.S.C. 1241 et
seq.); the Administrative Procedure Act (5 U.S.C. 551 et seq.); the
Eagle Protection Act (16 U.S.C. 668 et seq.); the Native American
Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.); the
American Indian Religious Freedom Act (42 U.S.C. 1996); and the Federal
Land Policy and Management Act (Pub. L. 94-579, 90 Stat. 2743 (Oct. 21,
1976) (43 U.S.C. 1701 et seq.)).
This waiver does not revoke or supersede any other waiver
determination made pursuant to section 102(c) of IIRIRA. Such waivers
shall remain in full force and effect in accordance with their terms. I
reserve the authority to execute further waivers from time to time as I
may determine to be necessary under section 102 of IIRIRA.
Alejandro N. Mayorkas,
Secretary. U.S. Department of Homeland Security.
[FR Doc. 2023-22176 Filed 10-4-23; 8:45 am]
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